Delhi District Court
State vs . Amit Jajoria & Ors on 31 October, 2019
IN THE COURT OF SH. GAGANDEEP JINDAL : MM09:
SOUTH EAST DISTRICT : SAKET COURT : NEW DELHI
State vs. Amit Jajoria & Ors
FIR No.158/2015
PS Defence Colony
U/s. 419/420/471/34 IPC
Date of Institution of Case : 13.03.2018
Judgment Reserved for : 18.10.2019
Date of Judgment : 31.10.2019
1. The date of offence : 31.03.2015 & 04.04.2015
2. Name of the complainant : Sh. Amit Parashar, S/o Sh. Jai
Prakash
3. Name of the accused, parentage : 1. Amit Jajoria S/o Sh. Trilok Chand,
& residential address R/o GH14/393, Paschim Vihar, New
Delhi;
2. Sandeep Sharma S/o Sh. Jyoti
Prasad Sharma, R/o RZE77, Nihal
Vihal, Nangloi, New Delhi;
3. Bhanu Pandey S/o Sh. Bachraj
Pandey, R/o Village Bhatpurva Post
Intiyathok, District Gonda, U.P.;
4. Pankaj Mehra S/o Sh. Ashok
Kumar R/o T699 Jhandewalan,
Karol Bagh, New Delhi;
5. Deepak Sharma S/o Sh. Rajesh
Kumar Sharma R/o Sh. RZE150
Nihal Vihar, New Delhi.
State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 1 of 14
4. Offence complained of or proved : 419/420/471/34 IPC
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : Accused Amit Jajoria and Sandeep
Sharma are convicted for the offence
u/s 419/420/471/34 IPC ; and
accused Bhanu Pandey, Pankaj Mehra
and Deepak Sharma are acquitted.
7. Date of judgment/order : 31.10.2019
JUDGMENT
1 The case of the prosecution is that on or before 31.03.2015 the accused persons in furtherance of your common intention dishonestly induced the officials of justdial.com by placing online purchase order of iphone 6 64GB Gold in the name of fictitious persons Sanjeev Baloria from mobile number 8010094363. The payment of Rs.60,154/ was made from the credit card number 4762426894516527 issued in the name of Christodass Rajenderan by playing fraud upon Christodass Rajenderan by inducing him to share OTP on the pretext of activation of credit card. Accused Amit Jajoria and Sandeep Sharma took the delivery of said iphone from Diana Store, Defence Colony Market by producing a forged Aadhar Card in the name of a fictitious person Sanjeev Baloria whereas other accused persons were arrested during the investigation at the instance of accused Amit Jajoria and Sandeep Sharma. After conclusion of investigation the charge sheet for the offence punishable u/s 419/420/468/471/411/34 IPC was filed.
State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 2 of 142 Charge for the offence u/s 419/420/471/34 IPC was framed against accused persons vide order dated 06.09.2018 to which they pleaded not guilty and claimed to be tried.
3 The prosecution had examined 19 witnesses to prove its case.
3.1 PW1 Sh. Sanjeev Chabra is the owner of M/s Diana Store , Defence Colony, New Delhi. He is the star witness of the prosecution. He deposed that on 02.04.2015, he received instructions from justdial for delivery of iphone 6 to one of his customer namely Sanjeev Baloria. On 04.04.2015, accused Amit Jajoria and Sandeep Sharma came to his shop to take the delivery of iphone. One of them produced Aadhar Card in the name of Sanjeev Baloria. Police had already laid the trap to arrest the accused persons as they had prior information that the purchase order has been placed in the name of fictitious person. He handed over the delivery of the iphone 6 to the said two boys. In the meantime, the police officials arrived at his shop and arrested them. He proved the Aadhar Card in the name of Sanjeev Balora Ex.P1, seizure memo Ex.PW1/A and the case property i.e. iphone 6 as Ex.P1.
3.2 PW2 Sh. Amit Parashar is the complainant, who lodged complaint Ex.PW2/A. He reiterated the facts as mentioned in the complaint. He proved the reply dated 22.12.2016 Ex.PW2/B, another reply Ex.PW2/C. The documents Ex.PW2/D which were handed over to the police officials during investigation, authority letter Ex.PW2/E, copy of vendorship agreement and cheque number 606627 Ex.PW2/F (colly). 3.3 PW3 Sh. Saurabh Pahwa deposed that he purchased a mobile make iphone 5S from M/s Rajesh Telecom for a sum of Rs.39,000/ vide invoice Ex.PW3/A. The payment was made from credit card of Sh. Manav Dua.
State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 3 of 14The said iphone and invoice was seized by the police officials vide Ex.PW3/B. 3.4 PW4 Sh. Manish Bhatia deposed that in March/ April 2016, he had purchased a mobile make iphone 5S from shop of his friend namely Gurvinder Singh, which was further sold to M/s Rajesh Telecom. 3.5 PW5 Sh. Manav Dua deposed that the payment of Rs.39000/ for purchase of mobile by Sh. Saurabh Pahwa was made by him through his credit card of HDFC Bank.
3.6 PW6 Sh. Punit Babbar handed over the transaction dated 30.03.2015 to 06.04.2015 of his credit card to police official with a letter dated 13.12.2016 Ex.PW6/A in pursuance of notice u/s 91 Cr.PC Ex.PW6/B. 3.7 PW7 Ms. Rachna Wadhva provided the details of credit card number 4386280017390760 alongwith statement of transaction to police officials which is Ex.PW7/A (colly) alongwith certificate u/s 65B Indian Evidence Act Ex.PW7/B. 3.8 PW8 Sh. Rajesh Kumar, owner of M/s Rajesh Telecom deposed that he purchased mobile phone make iphone 5S which was further sold to Saurabh Pahwa for Rs.39,000/.
3.9 PW9 Sh. Gurinder Madan deposed that he purchased iphone 5S from Amit which was further sold to Manish.
3.10 PW10 Sh. Christo Dass deposed that on 29.03.2015, he received a phone call from Deepak, who pretended himself as manager, SBI. Deepak told PW10 that his credit card has been deactivated and asked him to share the OTP number to activate the same. When he shared the OTP number, a sum of Rs.60154/ was debited from his credit card. Thereafter, he State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 4 of 14 received a call from police official namely Shiv Dutt, who informed him about the fraud played upon him. PW10 lodged a complaint through email Ex.PW10/A. His written statement Ex.PW10/B was recorded through Gajender Singh. He further deposed that Mr. Dhirendra a relative of accused Deepak asked him not to lodge a complaint and assured him to return Rs.60154/. A sun of Rs.40,000/was returned to him through bank transaction as reflected in statement of bank account Ex.PW11/A. 3.11 PW11 Sh. Udit Vermani relied upon the statement of bank account Ex.PW11/A to prove the payment received by M/s Mobile Studio for sale of mobile phone make iphone 5S.
3.12 PW12 ASI Aamir Khan was posted as Duty Officer in Police Station Defence Colony on 04.04.2015. He endorsed the rukka sent by SI Shiv Dev vide DD No.26A Ex.PW12/A and registered the present FIR Ex.PW12/B and issued certificate u/s 65B Indian Evidence Act Ex.PW12/C. 3.13 PW13 Sh. Balaji Sarma is the holder of credit card number 4386 280024360137 Ex.PW13/A and deposed that on 27.03.2015 he received a phone call from a person namely Deepak who pretended himself as employee of Citi Bank. Deepak asked him to shared the last four digit of his credit card on the pretext that a sum of Rs.39000/ has been wrongly debited. When he shared the said information a sum of Rs.39041/ was deducted from his credit card. He lodged complaint Ex.PW13/B and handed over copy of his Aadhar Card Ex.PW13/C to police official. 3.14 PW14 HC Bijender deposed that Sh. Balaji Sarma handed over his written complaint Ex.PW13/B to him. On 17.09.2017 Sh. R. Christo Dass also handed over his written complaint Ex.PW10/B and documents State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 5 of 14 Ex.PW10/A to him.
3.15 PW15 HC Bali Ram produced the register no.19 of the year 2015 and proved the entry number 1189 and 1193 Ex.PW15/A for deposition of case property of the present case in the malkhana.
3.16 PW16 Sh. Sharvan Jha, Manager PayU Payments proved his authority letter Ex.PW16/A and the transaction of PayU ID 307174697 dated 31.03.2015 of Rs.60154/ Ex.PW16/B and certificate 65B Indian Evidence Act Ex.PW16/C. 3.17 PW17 SI Shiv Dev is the IO of the present case. He deposed about the investigation conducted by him. He proved the rukka Ex.PW17/A, seizure memo Ex.PW1/A, seizure memo Ex.PW17/B, seizure memo Ex.PW17/C, arrest memo, personal search memo and disclosure statement of accused Amit Jajoria Ex.PW17/D, Ex.PW17/E, Ex.PW17/F respectively; arrest memo, personal search memo and disclosure statement of accused Sandeep Sharma Ex.PW17/H, Ex.PW17/I, Ex.PW17/J respectively; seizure memo Ex.PW17/G, seizure memo Ex.PW17/K, documents Ex.PW17/L; arrest memo, personal search memo and disclosure statement of accused Bhanu Pandey Ex.PW17/M, Ex.PW17/N, Ex.PW17/O respectively; seizure memo Ex.PW17/P, notices issued u/s 91 Cr.PC Ex.PW17/Q, PW17/R, Ex.PW17/S, arrest memo, personal search memo and disclosure statement of accused Pankaj Mehra Ex.PW17/T, Ex.PW17/U, Ex.PW17/V respectively; pointing out memo Ex.PW17/W, seizure memo of documents Ex.PW17/X, copy of Aadhar card in the name of Sandeep Baloria Ex.PW17/1, arrest memo, personal search memo and disclosure statement of accused Deepak Sharma Ex.PW17/Y, Ex.PW17/Z, Ex.PW17/AA respectively; pointing out memo State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 6 of 14 Ex.PW17/AB, copy of PAN Card Ex.PW17/AC, photographs of car bearing registration number DL10CB6486 Ex.P3 and Ex.P4. 3.18 PW18 ASI Rajender is the second IO of this case. He proved the notices served upon the officials of SBI Cards Ex.PW18/A and Ex.PW6/B. 3.19 PW19 Ms. Kusum Lata is the registered owner of car bearing registration number DL10CB6486 and deposed that she got released the said car vide superdariname Ex.PW19/A. She identified the said car in the photographs Ex.P3 and Ex.P4.
4 After completion of prosecution evidence, the accused persons were examined u/s 313 Cr.P.C. All the incriminating evidence was put to the accused persons to which they stated that they have been falsely implicated in the present case and denied the allegations made against them.
5 Accused Amit Jajoria examined his father Sh. Trilok Chand as DW1 to prove his plea of alibi. Other accused persons did not lead any defence evidence.
6 I have heard the arguments of Ld. APP for State and Sh. Amit Grover, Ld. Counsel for accused Amit Jajoria, Ms. Prabha Mishra, Ld. Counsel for accused Deepak Sharma, Sh. Vikram Baweja, Ld. Counsel for accused Sandeep, Mohd. Ashraf Hasnain, Ld. LAC for accused Bhanu Pandey and Pankaj. 7 It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 7 of 148 In the present case, the prosecution has relied upon the testimony of PW1, PW2 and PW17 to prove its case. Other witnesses are formal witnesses. 9 It has been alleged that accused persons had placed order to purchase iphone 6 through online portal justdial.com in the name of fictitious person Sanjeev Baloria from mobile number 8010094363. There is no evidence to prove that the said purchase order was placed by any of the accused persons. No efforts have been made by the IO to obtain customer application form (CAF) of the said mobile number 8010094363. IO did not collect any information regarding the IP address of email ID [email protected] which was used to place purchase order of iphone 6 and failed to collect the data regarding the location from where the purchase order was placed online. Thus, prosecution has failed to prove that accused persons had induced the officials of justdial.com to deliver iphone 6 by placing a purchase order in the name of fictitious person. 10 It is further alleged that accused Amit Jajoria and Sandeep Sharma visited M/s Diana Store on 04.04.2015 to take the delivery of iphone 6 in the name of fictitious person Sanjeev Baloria by producing a forged Aadhar Card in the name of Sanjeev Baloria.
11 To prove these allegations, the prosecution has relied upon the testimony of PW1. PW1 Sanjeev Chabra deposed as follows:
My father and I were running a shop tiled as Diana Store at Defence Colony market from 1958 to March 2018. On 02.04.2015, I received instructions from Just Dial regarding delivery of I Phone 6 (64GB) colour gold to Sanjeev Baloria. The cost of said was Rs. 60,000/ approximately at that time.
On 02.04.2015, a police official namely Shiv Dutt came at my shop and informed me that a racket is placing orders with the fake IDs and using the credit card of other persons. He also informed me that a delivery call has been made to me by Just Dial and asked me to apprehend the culprits red handed.
I received a call from said customer namely Sanjeev Baloria and told me State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 8 of 14 that a payment had already been made. He asked me to deliver the phone at Paschim Vihar or at Metro Station. I refused his request and asked him to take the delivery from my shop.
On 04.04.2015, two boys came at my shop to collect the delivery of the said Iphone. I sent message to IO Shiv Dutt. In the meantime, I asked the said boys to show their ID. One of the said boys gave me an Aadhar card in the name of Sanjeev Baloria. I handed over the said Iphone to one of the said two boys. I asked my employee to get the photocopy of the said Aadhar card from nearby shop. One HC Sunil in civil dress came at my shop and stood by my shop. Both said boys became suspicious. HC Sunil came inside my shop and apprehended the said two boys. In the meantime, 2 - 3 other police officials arrived at my shop. Police officials got recovered the said Iphone from the said two boys. Police officials conducted a personal search of those two boys and seized their personal belongings including their mobile phone. When police officials interrogated those two boys, they disclosed that their other accomplice were waiting in a car. Police recorded my statement. I came to know the name of one of the boys as Amit from the police officials.
The boy with specs in blue shirt present in the Court, came alongwith another boy in pink shirt at my shop. Accused Amit Jajoria and Sandeep Sharma are present in the court today (witness has pointed towards both accused Amit Jajoria and Sandeep Sharma and correctly identified them). Accused Amit Jajoria visited my shop as Sanjeev Baloria and had given me the Aadhar card in the name of Sanjeev Baloria."
12 Ld. Defence Counsel argued that another public witness i.e. PW2 Amit Parashar did not support the case of prosecution. PW2 resiled from his statement recorded u/s 161 Cr.PC Ex.PW1/A1. Another public witness is Sanjeev Chabra in whose testimony a lot of contradictions and deficiencies are there. He further argued that PW2 materially improved his statement at point A to A1, B to B1, C to C1, D to D1, E to E1. He did not sign the seizure memo of fake Aadhar Card in the name of Sanjeev Baloria. He did not go alongwith police officials for arrest of accused persons as claimed by the IO. No other employee of Sanjeev Chabra has been examined. He further argued that as per testimony of PW1 accused Amit Jajoria and Sandeep came to his shop at about 2 to 2:30 PM on 04.04.2015 whereas the complaint was endorsed by the IO at about 4:55 PM on State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 9 of 14 04.04.2015 which means that the investigation of the case was started by the IO before receiving information and registration of FIR. 13 Ld. Defence counsel has also argued that PW2 was not authorized to lodge the complaint on behalf of justdial.com. Mere information of a cognizable offence is sufficient to put the police machinery in motion to take action. It is not mandate of law that such information must be given by any authorized person. The police can take action only on the basis of the information regarding cognizable offence received from any anonymous person also. Therefore, there is no merit in this argument of Ld. Defence counsel.
14 The Hon'ble Supreme Court of India in the case of Ramesh & Ors Vs State of Haryana, AIR 2016 SC 5554 has held that in criminal case witness turning hostile has become a common phenomenon and that by itself should not be a reason to let the accused go scot free, if there are other evidences to support the charges against the accused.
15 PW1 Sh. Sandeep Chabra is an independent public witness. There is nothing to show that the PW1 was previously known to both accused Amit Jajoria and Sandeep Sharma. PW3 had no personal interest in false implication of both of them as he had no enmity with both accused Amit Jajoria and Sandeep Sharma. PW1 had seen both of them at the time when they took delivery of iphone in the name of fictitious person Sanjeev Baloria and used the fake Aadhar Card in the name of Sanjeev Baloria. Both of them were apprehended at the spot. 16 PW1 has also identified the fake Aadhar Card in the name of Sanjeev Baloria Ex.P1 which was produced by Amit Jajoria, at the time of taking the delivery of iphone 6. The said fake Aadhar Card Ex.P1 is of 16 digits whereas as per reply Ex.PW17/S submitted by Unique Identification of Authority of India, The Aadhar Card of only 12 digits is being issued by it and 16 digits Aadhar State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 10 of 14 Card has never been issued. Thus, it is proved that the Aadhar Card Ex.P1 is forged and fabricated document which was used by accused Amit Jajoria and Sandeep Sharma to induce PW1 Sanjeev Chabra, owner of M/s Diana Store to deliver the iphone 6 to them.
17 PW17 / IO has categorically deposed in his crossexamination that complainant / PW2 met him two days before 04.04.2015, but he lodged written complaint only on 04.04.2015. PW1 has also deposed that PW17 visited his shop on 02.04.2015 and informed him about a racket who used to place online orders with fake IDs. These explanations are sufficient to proved that though the written complaint was lodged on 04.04.2015 but the information regarding the said offence was received prior to that.
18 When Amit Jajoria in further common intention with Sandeep Sharma pretended himself as Sanjeev Baloria, the offence u/s 419 IPC was committed by them. When they both used the fake Aadhar Card Ex.P1 in the name of fictitious person Sanjeev Baloria to take the delivery of iphone 6, they both committed the offence u/s 471 IPC. When the delivery of iphone 6 was handed over to them the commission of offence u/s 420 IPC was completed. Both accused Amit Jajoria and Sandeep Sharma actively participated in commission of these offences, therefore, they both can be held liable for each other action u/s 34 IPC. 19 The deficiencies pointed out by Ld. Counsel for accused with regard to investigation such as contradictions about time of arrest of accused and preparation of the documents by the police at the police booth and not at the spot are minor contradictions, which do not go to the root of the case and such discrepancies are bound to occur in every case. Suffice to say that the contradictions are natural contradictions and do not affect the case of the prosecution at all. The benefit of minor contradictions in investigation cannot be State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 11 of 14 given to accused especially when the testimony of eye witness/victim is found to be reliable.
20 To substantiate and prove the guilt of the accused, only the statement of one independent eye witness is sufficient. In this regard, it would be relevant to mention that in Abdul Sayeed Vs. State of M.P, 2010 IX AD (SC) 615= (2010) 10 SCC 259, the Hon'ble Apex Court, while dealing with the reliability of testimony of injured witness, held as under:
"The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
21 The prosecution has alleged that accused Bhanu Pandey, Deepak Sharma and Pankaj Mehra are also involved in the commission of offence. To prove the allegations against Bhanu Pandey, Deepak Sharma and Pankaj Mehra, prosecution has relied upon the testimony of PW17 who is IO of this case. Accused Bhanu Pandey was allegedly arrested from Defence Colony market at the instance of accused Amit Jajoria and Sandeep Sharma. Prosecution has not examined any other witness except PW17 and PW1 to prove the arrest of accused Bhanu Pandey. PW1 deposed that accused Bhanu Pandey was not arrested in his presence. Other police officials who witnessed the arrest of accused Bhanu Pandey has not been examined. It is further alleged that some documents Ex.PW17/L were seized from accused Bhanu Pandey vide seizure memo State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 12 of 14 Ex.PW17/K but prosecution failed to prove any of those documents Ex.PW17/L had any bearing upon its case and failed to relate these documents to the commission of offence in this case. Thus, there is no other evidence, except confessional statement of accused made before police, against accused Bhanu Pandey. Confession statement made to the police is not admissible in evidence u/s 25 Indian Evidence Act.
22 It is alleged against accused Pankaj Mehra that he was arrested from Karol Bagh on 23.04.2015 at the instance of secret informer. Again, there is no other evidence, except confessional statement of accused made before police, against accused Pankaj Mehra. Confessional statement made to the police is not admissible in evidence u/s 25 Indian Evidence Act.
23 It is alleged against accused Deepak Sharma that he was arrested from Nihal Verma on 03.07.2015 at the instance of secret informer. The documents including one copy of Aadhar Card No.851036543956 in the name of Sandeep Baloria Mark PW17/1 at the instance of accused Deepak Sharma was recovered from his house. Prosecution failed to prove that any of those documents were used by accused Deepak Sharma to commit the offence involved in this case. Moreover, no public witness to prove the authenticity of the recovery of those documents at the instance of accused Deepak Sharma, had been examined as mandated u/s 100 (4) Cr.PC. Therefore, there is no other evidence, except confessional statement of accused made before police, against accused Deepak Sharma. Confessional statement made to the police is not admissible in evidence u/s 25 Indian Evidence Act.
24 In view of above discussion and after appreciation the evidence, the court is of the considered opinion that the prosecution has failed to prove its case against Bhanu Pandey, Pankaj Mehra and Deepak Sharma that they were also State vs. Amit Jajoria & Ors FIR No. 158/15; PS Defence Colony Page 13 of 14 involved in the commission of offence u/s 419/420/471/34 IPC. Thus, they are acquitted in this case.
25 Whereas, in view of the above discussion, the court is of the considered opinion the prosecution has been able to prove its case beyond reasonable doubt that both accused Amit Jajoria and Sandeep Sharma dishonestly induced PW1 Sanjeev Chabra to deliver them iphone 6 by pretending that accused Amit Jajoria is Sanjeev Baloria and used the forged Aadhar Card in the name of Sanjeev Baloria to take the delivery of iphone 6 from PW1 who is owner of M/s Diana Store. Hence, both accused Amit Jajoria and Sandeep Sharma stand convicted for the offence U/s 419/420/471/34 IPC. Let both convicts be heard on the point of sentence separately.
Digitally signed by GAGANDEEP GAGANDEEP JINDAL
JINDAL Date: 2019.11.02
Announced and signed in 16:21:46 +0530
the open court on 31.10.2019
(Gagandeep Jindal)
MM09/SED/ND/31.10.2019
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