Delhi District Court
State vs Kamal Kumar on 25 September, 2024
IN THE COURT OF Ms. VIJAYSHREE RATHORE, JUDICIAL
MAGISTRATE FIRST CLASS, SOUTH DISTRICT, SAKET
COURTS, DELHI
STATE VS. Kamal Kumar
FIR No. : 177/2010
PS : Hauz Khas
U/s : 420/468/471/120B IPC
JUDGMENT
A. Sl. No. of the Case 2035534/2016 DLST020005002011 B. Date of Commission of offence Year 2010 C. Date of FIR 29.05.2010 D. Date of charge-sheet 22.07.2011 E. Name of the complainant Javed Chouhan F. Name of the accused persons, their 1) Kamal Kumar S/o Late Sh. Nem Chand, R/o parentage and residence H.No. 371, Mohalla Dusngarpur, Shahdara, Delhi.
2) Vijay Soni S/o Daya Ram, R/o D/13/352, Laxmi Nagar, Delhi.
3) Ankush Babbar S/o Shiv Kumar Babbar, R/o 34/3/46, Basement Bedanpura, Karol Bagh, Delhi.
G. Offence complained of or proved 420/468/471/120B IPC
H. Date of framing of charges 25.09.2014
I. Date of commencement of evidence 10.01.2018
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J. Plea of the accused Pleaded not guilty
K. Date on which judgment is reserved 02.08.2024
L. Final Order Acquitted
M. Date of Judgment 25.09.2024
Brief facts of the present case
1. The case of the prosecution arises out of complaint dt. 26.03.2010 of complainant Javed Chouhan, Assistant Manager, M-I South Ex. Part II, New Delhi who had filed complaint on behalf of Standard Chartered Bank with respect to credit card transactions as the same were being misused post the same being used with a particular merchant. Four card number were misused. All the four customers disputed the card swipe transactions and claimed that the card is under their possession. It was found that all the mentioned cards were used at Ring Road Service Station prior to misuse and therefore suspicion was raised that the data is getting compromised at Ring Road service station. On the basis of complaint, the FIR was registered in the case u/s 420/468/471 IPC.
2. During investigation, complaint of Manish Bhargav Manager, AUTH and Fraud Control Unit Royals Bank of Scotland was received in which cheating was found to be made through credit card no. 5415385400026947, 5239504400579864, 5425051705156809, 54153824016432000 . According to said State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.2 of 28 complaint Rs. 19,400/- of customer Gaurav Handa, Rs. 47,500/- of customer Pawan Jain, Rs. 58,000/- of customer Badri Shreshtha and Rs. 32,500/- of customer C.S. Bist were found to be withdrawn from their account by cloned credit/debit cards. Total Rs. 1,57,400/- was found to be withdrawn from bank accounts of RBS. After getting details from the bank, Bobby Verma and Jawala Nagar were called through notice for interrogation who disclosed that they knew person named accused Kamal who works of cheating through Cloned Debit/credit card. IO arrested accused Kamal Kumar on the identification of Bobby Verma. During interrogation he disclosed that cloned cards were made by Vipin and were used in their loan shop and the income was distributed between them and commission was also given to shopkeepers. Accused Kamal was arrested and was sent to PC. At the instance of Kamal Kumar, accused Vijay Soni and Bobby Verma were arrested and their disclosure statements were also recorded. They were sent to PC. Thereafter accused Ankush was arrested on 14.06.2010. Disclosure statement of all accused persons was recorded. Accused Kamal Kumar got recovered 7 debit/credit cards from the TV rack of his house and the same was seized vide seizure memo. Documents were collected from the bank wherein it was shown that the amount was credited from the account of Prashant Dutt, Sandeep Ahiya, Sumer Tandon, R.K. Agarwal. Documents were also collected of RBS bank wherein it was found that the amount was withdrawn from account of Gaurav Handa, Pawan Jain,, Badri Shreshtha, C.S. Bist by cloned State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.3 of 28 debit/credit card. Thereafter accused persons were sent to JC. After completing the investigation, the charge-sheet was filed in the case.
Framing of charge
3. After compliance of Section 207 Cr.P.C., vide order dated 25.09.2014 charge u/s 420/120B, 468/120B and 471/120B IPC was framed against accused persons to which the accused persons pleaded not guilty and claimed trial.
Prosecution Evidence
4. In support of its case, the prosecution had examined 17 witnesses. PW1 is Prashant Datta, PW2 is Sandeep Ahuja, PW3 is Sharul Aggarwal, PW4 is Imran Begh , PW5 is Javed Chauhan, PW6 is Sumedh Tandon, PW7 is C.S Bisht, PW8 is Gaurav Handa, PW9 is ASI Kishore Kumar, PW10 is Bobby Verma, PW11 is Badri Shreshta, PW12 is SI Jainender, PW13 is SI Vijay Pal, PW14 is Insp. Inderjeet, PW15 is Insp. Chander Shekhar, PW16 is Anupam Sharma and PW17 is Sushant Gautam.
5. PW5 Javed Chauhan had deposed in his testimony that on 26.03.2010 he was working as a Assistant Manager in Standard Chartered Bank at ITO, New Delhi. He had further deposed that on that day, he had moved a complaint to the IO regarding some fraudulent transactions done on Standard Chartered Banks State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.4 of 28 Customers Credit and Debit Card and the said complaint is Ex. PW5/A. He had further deposed that he had given above said complaint due to that he had already found from the customer namely Sandeep Ahuja, R.K. Aggarwal, Prashant Dutta and Sumedh Tandon a complaint through mail. That's Prashant Dutta Debit Card holder had given his dispute declaration form alongwith copy of email regarding Rs.14500/- and Rs.7500/-. He had further deposed that on the basis of this dispute declaration form he retrieved two charge slip one of Rs.14,500/- and other was Rs.7,500/-. He had further deposed that during the process of charge back the above said documents were provided by the Merchant Acquiring Bank i.e. Corporation Banks. The above said document is Mark A (running into 5 pages). He had further deposed that he also received dispute declaration form from Sandeep Ahuja for the disputed transaction done on his credit card for the amount of Rs.42500/- and Rs. 8500/-. He had further deposed that subsequently the charge slips and bill were retrieved from the corporation bank and the above said documents are Mark B (running into two page). He had further deposed that he also received declaration dispute form regarding amount of Rs. 38200/- from Jasdeep Singh Bajaj. Subsequently copy of charge slip retrieved from the Corporation bank. The said document is Mark C running into 2 pages. He had further deposed that he received a declaration dispute form from Avinash Singh Grewal who disputed a transaction of Rs. 5000/-. He had further deposed that subsequently charge slip copy was retrieved from State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.5 of 28 Corporation Bank. The said document is Mark D (running into two pages). He had further deposed that he received declaration dispute form Sh. R.K.Agarwal, credit card holder, disputed a transaction of Rs. 41280/-. He had further deposed that he retrieved the charge slip and bill copy along with I/D proof. The said copy is Mark E (running into 2 pages). He had further deposed that he received additional dispute form from Sumedh Tandon regarding one more transaction of Rs. 41000/-. He had further deposed that he retrieved the charge slip from Corporation Bank and the said copy is Mark F (running into 2 page). He had further deposed that he handed over to the IO the customer application form of corporate salary account pertaining to Prashant Dutta to whom allotted account no. 53310207732 running into two pages which is Ex PW5/B. He had further deposed that he also handed over to the IO customer application form (credit card) pertaining to R.K.Agarwal which was allotted account no. 4196074948478962. The said application form is Ex PW3/A. He had further deposed that he also handed over customer application form pertaining to Mr. Jasdeep Singh, credit card no. 5546232907827066, the same is Ex PW5/C. He had further deposed that he also handed over to the IO the customer application form (running into seven pages) pertaining to Mr. Sandeep Ahuja which was allotted credit card no. 5546232907808264 Ex PW5/D. He had further deposed that he also handed over a request letter to the IO regarding indemnity to the bank which is Ex PW5/E. He had further deposed that he also handed over the IO the details of victim State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.6 of 28 customers regarding their credit and debit cards, Ex PW5/F. He had further deposed that IO prepared the seizure memo regarding above mentioned all details which is Ex PW5/G.
6. PW1 Prashant Datta had deposed in his testimony that on he had an account in Standard Chartered Bank. He had further deposed that it was Sunday around 6/7 years back, he was sitting in his home. he got a message that his card has been swiped twice within the span of 15 minutes, once for about Rs. 14000/- and for about Rs. 8000/-. He had further deposed that thereafter he made complaint to the bank in this regard. On asking leading question, witness stated that he cannot say whether the message regarding the swipe of card was received on 21.03.2010. He cannot say whether his card no is 4763384000553906. He cannot say exactly whether the amount which was swiped was Rs. 14500/- and Rs. 7500/- respectively. But both the swiping were done at different places far from each other which was physically impossible within a span of 15 minutes.
7. PW2 Sandeep Ahuja had deposed in his testimony that on he was holder credit card of standard chartered bank in the year 2010. He had further deposed that on 23.3.10, he had received message regarding withdrawal of Rs. 42500/- from his credit card at Om Jeweller but he had not used his card in any such transaction. He had further deposed that at the time of alleged transaction, he State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.7 of 28 was in his office along with his card. His card no. was 5546232907808264. He had further deposed that he had made complaint regarding said transaction to PS Dwarka and PS Hauz Khas. He had further deposed that he had also immediately complained to the bank. He had filled dispute declaration form in Standard Chartered Bank, photocopy of which is Mark A. He had further deposed that his complaint which was made to PS Dwarka is Mark B.
8. PW3 Sharul Agarwal had deposed in his testimony that on his father was credit card holder of Standard Chartered Bank in the year 2010. He had further deposed that his father had informed him that transaction of amount about Rs. 40000 to Rs. 44000/- has been made by his credit card which was not made by him and asked him to inquire the bank upon the procedure to file complaint in this regard. He had further deposed that the transaction had taken place on 5th or 6th of February, 2010. He had further deposed that thereafter, complaint was lodged by his father regarding the said transaction to the bank and he also filed complaint in PS Greater Kailash Part-I. Copy of complaint made to PS G.K. is Mark C. He had further deposed that credit card application form of his father is Ex PW3/A.
9. PW4 Imran Begh had deposed in his testimony that in the year 2010 he was employed in RBS Bank at Noida as an officer.
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He had further deposed that some complaints were received regarding fraud committed with their customers. He had further deposed that his senior had asked him to provide details of certain account and cards which was given by vide Ex PW4/A and Ex PW4/B (colly) for the purpose of FIR which was lodged in regard to fraud committed.
10. PW6 Sumedh Tandon had deposed in his testimony that on he has an account from the Standard Charted bank, situated at Chankyapuri Branch. He had further deposed that on 18.03.2010, three transaction was done by some unknown person through his cloned debit card no. 4636650001046200. He had further deposed that the three transaction was amount of rs. 41,000/- and second was Rs.15,000/- and third was Rs.14,500/-. He had further deposed that regarding this, he had made a complaint to the bank. He had further deposed that his statement was recorded by the IO u/s 161 Cr.P.C.
11. PW7 C.S. Bisht had deposed in his testimony that on he had a credit card from the Royal Bank of Scotland situated M-6, Hauz Khas, New Delhi. He had further deposed that on 14.03.2010, a transaction of amount of Rs.32,500/- was done by some unknown person through his cloned credit card no.0005415382401643200 without his knowledge. He had further deposed that he had made a complaint to the bank regarding this transaction and his statement was recorded by the IO u/s161 Cr.PC.
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12. PW8 Gaurav Handa had deposed in his testimony that on he had opened an account with the Royal Bank of Scotland at M-6, Hauz Khas, New Delhi and he had also a credit card on the same account. He had further deposed that in the year 2010 that an amount of Rs.19.400/- got withdrawn through credit card from his account without his permission and consent or knowledge. He had further deposed that as soon as, he came to know about the unauthorized withdrawal, he dialed at the toll free number of the bank and informed that he had not authorized the said withdrawal and lodged the grievance/ complaint with the bank. He had further deposed that police never inquired about the matter from him.
13. PW11 Badri Shrestha had deposed in his testimony that on he is the Director of TC Link Project. He had further deposed that in the year 2010, he had an account then at RBS Bank, Near Punjabi Bagh, Delhi. He had further deposed that he had a Credit Card issued by the Bank. He had further deposed that he received two messages on his mobile phone in the same year regarding swiping of his Credit Card and withdrawal of Rs.35,000/- (approx.) and Rs.22,000/- (approx.). He had further deposed that he then wrote a letter to the Bank and annexed copy of his boarding pass to show that he was in Bombay, when the transactions were carried out. He had further deposed that these were fictitious withdrawals and the Credit Card was in his possession at that time. He had State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.10 of 28 further deposed that he had brought a copy of the complaint given to ABN AMRO Bank (then already RBS) alongwith E-mails exchanged with the bank and the same are Mark PW-11/A and Mark PW-11/B (Colly.).
14. PW10 Bobby Verma had deposed in his testimony that he run a Jewellery Shop at Shahadara, Bada Bazaar, Delhi. He had further deposed that on 05.02.2010, accused Kamal (correctly identified) had come to his Shop alongwith one unknown person to his Shop. He had further deposed that they had shopped jewellery from his Shop and had made payment by Credit Card. He had further deposed that they had made a purchase of Rs.41,280/- After two days, one employee from the Bank came and informed that the transaction was fraudulent and asked for the bill, charge slip and ID. He had further deposed that he told him that he did not have the ID of Kamal Kumar but he could ask for it. He had further deposed that he then called accused Kamal Kumar for the ID. He had further deposed that on the next day, he handed over a copy of the I Card to him. He then handed it over to the Bank official. He had further deposed that he was also informed by the Bank official that his payment had been blocked. He had further deposed that he had visited the address mentioned on the ID and the address was found to be fake. He had further deposed that he contacted Kamal and told him that his jewellery should be returned. He had further deposed that the jewellery purchased were one silver ring and one gold gents State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.11 of 28 bracelet. He had further deposed that accused Kamal kept dilly- dallying that on return of the person, who accompanied him to the Shop, he would get the jewellery returned. He had further deposed that on 15.03.2010, he filed complaint in the PS Farsh Bazaar against the accused. The witness has produced a copy of his complaint Mark PW-10/A. He had further deposed that then Police contacted him and he assured them that he could get accused Kamal apprehended. He had further deposed that on 20.06.2010, he took the police officials to house of accused Kamal and accused was arrested there.
15. PW16 Anupam Sharma had deposed in his testimony that on he worked in RBS Bank from 2007 to 2011 as Senior Officer Fraud Control Unit. He was called by Mr. Manish Bhargav, Manager of RBS at that time pertaining to the present case. He had provided documents containing details of the credit cards to the IO vide Ex.PW4/A and Ex.PW4/B (colly).
16. PW17 Sushant Gautam had deposed in his testimony that the RBS Bank had wound up their business in the year 2017. He had further deposed that some of its assets were purchased by RBL Bank. He had further deposed that the summons in the name of Manish Bhargav were received at the office of RBL Bank, Hauz Khas. He had further deposed that there is no record available with RBL Bank of Manish Bhargav.
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17. PW14 Insp. Inderjeet had deposed in his testimony that on 30.03.2010 a complaint was received from Standard Charted Bank through its Asst. Manager Javed Chauhan regarding fraudulent transactions through credit/debit cards. Another complaint dt. 15.04.2010 was received from RBS bank through its Manager Manish Bhargav alleging fraudulent transactions through credit/debit cards. He had further deposed that the complaint dt. 30.03.2010 was endorsed by him and the rukka was prepared Ex.PW14/A. He had further deposed that on the basis of said complaints the FIR was registered and investigation undertaken which was handed over to SI Chander Shekhar.
18. PW9 ASI Kishore Kumar had deposed in his testimony that on 12.6.2010, he joined the investigation with IO SI Chandra Shekhar,Ct. Manoj & HC Hukam Chand. He had further deposed that on that day one Bobby Verma came to PS and gave information about accused Kamal Kumar. He had further deposed that thereafter they along with Bobby Verma proceeded to Farsh Bazar, Shahdara and thereafter at the instance of Bobby Verma accused Kamal Kumar was apprehend. He had further deposed that thereafter he was formally interrogated. He had further deposed that thereafter IO arrested him and conducted his personal search. He had further deposed that thereafter IO recorded disclosure statement of Kamal Kumar same is Ex PW9/A. He had further deposed that thereafter State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.13 of 28 they came to PS and medical examination of accused was got conducted and he was put in lockup. He had further deposed that thereafter on 13.6.2010 he again joined the investigation of the present case with IO. He had further deposed that on that day accused Bobby Verma called to PS, thereafter he was interrogated and thereafter he was arrested and his personal search was got conducted. He had further deposed that IO also recorded his disclosure statement Ex PW9/B. Witness had correctly identified accused Kamal Kumar.
19. PW13 SI Vijay Pal had deposed in his testimony that on 13.06.2010 accused Vijay Soni and Bobby Verma were arrested by the IO and IO had directed him take accused to hospital for their medical. He had further deposed that he had taken both the accused persons to AIIMS and thereafter he had taken them to PS and handed over them to IO. Witness had correctly identified the accused Vijay Soni.
20. PW12 SI Jainender had deposed in his testimony that on 03.05.2011, the investigation of the present FIR was marked to him. He had further deposed that thereafter, he moved an application before the Court for seeking release of Bobby Verma. He had further deposed that he was released and the application in this regard is Ex. 12/A. He had further deposed that he thereafter verified the identity proof given by accused Kamal at different State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.14 of 28 shops at the time of purchase and the same were found fake. He had further deposed that the request made to Incharge, Electoral Registration Office is Ex.PW-12/B alongwith verification reports Ex.PW-12/C, D & E. He thereafter prepared the charge sheet and filed the same.
21. PW15 Insp. Chander Shekhar had deposed in his testimony that on 29.05.2010 present FIR got registered by SI Inderjeet and was marked to him for further investigation. He had further deposed that on 12.06.2010 one person namely Bobby Verma came to PS and gave him one complaint stating there in that accused Kamal Kumar had purchased some articles from his shop Shri Ram Jewelers. He had further deposed that he further stated that after two days of the purchase, the bank officials had stopped his payment and then he had come to know that accused Kamal had used the cloned card in purchase. He had further deposed that on the basis of complaint, it was found that the matter is concerned with case FIR no. 177/2010 and he immediately had gone to Farsh Bazaar along-with complainant Bobby Verma. He had further deposed that he took him to the house of accused Kamal. He had further deposed that accused was found present at his house and the inquiries/investigations was made and during the course of interrogation accused disclosed that it is true that out of greed, Kamal alongwith one Vipin and Jahid etc had started to use cloned card and his disclosure statement was recorded vide Ex.PW9/A. He State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.15 of 28 had further deposed that the arrest memo is Ex.PW15/A. He had further deposed that on 13.06.2010 accused was produced before the Court and was granted 4 days police custody. He had further deposed that during the course of interrogation, accused Bobby Verma and Vijay Soni were arrested vide memo Ex.PW10/DX2 and Ex.PW15/B. He had further deposed that disclosure statement of accused Vijay Soni vide Ex.PW15/C and of accused Bobby Verma vide Ex.PW9/B. He had further deposed that further during the course of interrogation it was revealed that the purchasing was also made from Om Jewelers. He had further deposed that on the instance of accused Kamal, accused Ankush Babbar was also arrested vide Ex.PW15/D. He had further deposed that on 15.06.2010 accused Kamal brought the police team to his house and got recovered seven cards and same were seized vide Ex.PW15/E and also got recovered one original receipt of jewelery purchase of Kashoti Jewelers and same was seized which is Ex.PW15/F. He had further deposed that on 17.06.2010 accused Kamal was sent to JC. He had further deposed that the investigation of the case was carried out and the documents related were collected from the bank and got them verified and efforts were made to nab other accused persons. He had further deposed that thereafter he was transferred from PS Hauz Khas and he handed over the file to MHCR on 30.07.2010. Witness had correctly identified the accused persons.
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Statement of accused
22. The examination of accused persons u/s 313 r/w 281 Cr.P.C. was recorded in which they stated that they are innocent. They have been falsely implicated in the case. The witnesses deposed before this Court at the instance of the police officials.
23. Accused persons did not lead defence evidence. Thereafter matter was fixed for final arguments.
24. Final arguments addressed by the Ld. APP for State and Ld. Counsel for accused were heard and case file was perused.
25. It is argued by the Ld. APP for the State that there is sufficient material available against the accused persons that they had forged the appointment letters in the name of Ravi Kant Mishra and had induced them to part with the payment of Rs. 3 lacs on the pretext of getting him appointed on the post of ward boy in AIIMS hospital. Thus, it is a fit case of conviction.
26. It is argued by Ld. counsel for the accused persons that Ravi Kant Mishra is the victim in the case. He is not examined before the court. The ingredients of inducement and dishonest delivery of valuable security are also proved in the case. Not even a single witness had stated before the court that they had paid State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.17 of 28 anything to accused persons. When there is no delivery of property, no case case of cheating is made out. The contents of FIR are not proved in the case. Who directed the complainant to lodge complaint is not known. It is further argued on behalf of the accused persons that forged documents were not delivered in the AIIMS. Recovery is not proved in the case. Mere version of police officials that recovery is made from accused Praveen Kumar Ahlawat cannot be relied upon. In FSL report also signatures of accused Ravi Kant Mishra are not matched.
27. Before proceeding with the appreciation of evidence, I shall deal with the relevant laws involved in the case. Section 420 Indian Penal Code deals with Cheating and dishonestly inducing delivery of property. The provision reads as -
"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."
28. Forgery is defined under Section 463 of Indian Penal Code. The section reads as "Whosoever makes any fake document or incorrect electronic record or part of a document with an State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.18 of 28 intention 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 share with property, or to enter into any express or implied contract, or with purpose to commit fraud or that fraud may be accomplished, commits forgery."
In order to constitute forgery, the first essential is that-
a. the accused should have made a false document.
b. And secondly, the false document must be made with an intention to cause harm or injury to the public or to any class of society or to any community.
29. 'False document' is dealt under section 464 IPC. The definition of "false document" is a part of the definition of "forgery". Both must be read together. An analysis of section 464 of Indian Penal Code shows that it divides false documents into three categories:
1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2) The second is where a person dishonestly or
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fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
30. Section 468 IPC provides punishment for "forgery for the purpose of cheating". As per the Section, "whoever commits forgery intending that the document or electronic record forged shall be used for the purpose of cheating shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine".
31. Section 471 IPC prescribes punishment for 'using forged document'. According to the said section using a forged document as genuine is a cognizable offence. It states that 'whoever fraudulently or dishonestly accepts as the genuine document which he knows or has ground to believe to be a forged document, shall be punished in the corresponding manner as if he had forged such document.' 32 Forgery' and 'Fraud' are essentially matters of State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.20 of 28 evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts.
33. The case of the prosecution is that accused persons entered into criminal conspiracy and induced the bank officials to believe that authorized card holder were using the original ATM card for withdrawing amount and withdrew the amount using cloned ATM cards for the purpose of cheating. In this regard, PW5 Javed Chauhan Senior Manager, ICICI Bank, who is also the complainant in the case, had deposed that on 26.03.2010 he was working as Assistant Manager in Standard Chartered Bank at ITO. He moved a complaint to IO regarding some fraudulent transactions done on Standard Chartered Banks Customers Credit and Debit card. He had proved his complaint Ex.PW5/A. He had also deposed that he received a few declaration from customer Prashant Dutta regarding Rs. 14,500 and 7500/-, from Sandeep Ahuja for disputed transactions done on his credit card for amount of Rs. 42500 and 8500/-, from Jasdeep Singh Bajaj for amount of Rs. 38,200/-, dispute declaration form from Avinash Singh Grewal for disputed transaction of Rs. 5000/-, from R.K. Aggarwal credited card holder, disputed transaction of Rs. 41280/- and also dispute form from Sumed Tandon for transaction of Rs. 41,000/-. He had also deposed that he handed over customer application form pertaining to Prashant Dutta, RK Aggarwal, Jasdeep Singh, Sandeep Ahuja of their respective account number/credit card number.
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34. In support of PW5 Javed Chauhan, PW1 Prashant Dutta had duly deposed that he got a message while sitting in his home that his card has been swiped twice within a span of 15 minuetes. Once for about Rs. 14000 and other for Rs. 8000/-. He also deposed that both the transactions were done at the different places far from each other which was physically impossible within a span of 15 minutes. PW Sandeep Ahuja had also deposed that he was the holder of credit card of Standard Chartered Bank and on 23.03.2010 he received message regarding withdrawal of Rs. 42500/- from his credit card at Om Jewelers but he had not used any such card in any such transaction. PW3 Shrul Aggarwal had also deposed that in the year 2010 he received information from his father that transaction of amount of Rs. 40,000/- to Rs. 44000/- has been made by his credit card and complaint was lodged by his father regarding the transaction. Similarly PW6 Sumed Tandon had also deposed that on 18.03.2010 three transactions amounting to Rs. 41,000, 15000 and 14500/- was made by some unknown person using his cloned credit card. Thus, all the customers had duly proved that they were having accounts in Standard Chartered Bank and the cloned credit/debit card were used in making the transaction by some unknown person.
35. PW4 Imran Begh had deposed that in the year 2010 he was employed in RBS Bank at Noida as an officer and some State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.22 of 28 complaints were received regarding the fraud committed with their customers. He provided the details of certain accounts and cards vide Ex.PW4/A and Ex.PW4/B for the purpose of lodging complaint. In support of the witness, PW7 C.S. Bisht had deposed that he had a credit card from Royals Bank of Scotland and transaction of Rs. 32500/- was done by some unknown person through his cloned credit card without his knowledge. Similarly, PW8 Gourav Handa had also deposed that in the year 2010 amount of Rs. 19400/- were withdrawn through credit card from his account with his permission of knowledge. PW11 Badri Shreshtha had also deposed that in the year 2010 he received two message on his mobile phone regarding swapping of his credit card and withdrawal of Rs. 35000/- and 22000/- approximately. These were fictitious withdrawals and credit card was in his possession. Thus,, they had also proved that the unauthorized transactions were done through some cloned credit cards while they were already in possession of their original credit/debit card.
36. According to PW15 Insp. Chander Shekhar on 12.06.2010 one person namely Bobby Verma came to PS and gave him complaint stating that accused Kamal Kumar had purchased some articles from his shop Shri Ram Jewelers. He also informed that after two days of purchase, bank officials had stopped his payment and then he came to know that accused Kamal had used the cloned card in purchase. PW10 Bobby Verma had deposed that on State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.23 of 28 05.02.2010 accused Kamal had come to his shop along-with one unknown person who came to be one Vijay Aggarwal. They had shopped jewelery from his shop and had made payment by credit card. They had made a purchase of Rs. 41280/-. After two days, one employee from bank came and informed that the transaction was fraudulent and asked for the bill, charge-slip and ID. He told him that he did not have ID of Kamal Kumar but he can ask for the same. He then called to Kamal Kumar for the ID and handed over to the bank official. In his cross-examination, PW10 Bobby Verma had admitted that as per the banking norms he was required to take copy of I-card of the customer/card holder and preserve it with the transaction bill to reimbursement. He voluntarily stated that he did not take I-card of unknown persons. He admitted that the bill has been issued by him which is Ex.PW10/DX1. He admitted that he do not know Vijay Aggarwal from before. He also admitted that prior to February 2010 Vijay Aggarwal had no purchase from the shop. He also admitted that he did not know Vijay Aggarwal from before. He admitted in his cross-examination that he know Kamal Kumar since year 2009 and he had filed criminal complaint u/s 138 NI Act against Kamal at KKD Courts. On questioning him as to who had made the purchase against bill for sum of Rs. 41280/- and swiped card of one of the victim of present case, the witness replied that the person who had accompanied Kamal to his shop and had been introduced by the Kamal, had made the purchase against the bill. He admitted that he had not taken any ID proof of that person at the State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.24 of 28 time of introduction. He admitted that he had not filed any complaint against Vijay Aggarwal. The careful testimony of PW10 Bobby Verma appears to be full of contradiction. At one end he is admitting that the transaction was made by person accompanying accused Kamal Kumar i.e. Vijay Aggarwal and on the other hand he is stating that he had not taken any ID proof from Vijay Aggarwal. According to him, he did not used to take ID card from the known customers. Though Kamal was known to him, however the witness himself admitted that Vijay Aggarwal was not known to him. As per the banking norms, he was required to take the ID proof of Vijay Aggarwal and even Kamal Kumar at the time of making alleged transaction of Rs. 41500/-. There is no reason why PW Bobby Verma had not taken the ID proof from Kamal or Vijay Sharma at the time of making transaction for jewelery.
37. Admittedly, accused Kamal was known to Bobby Verma before the alleged transaction. He had even filed criminal complaint u/s 138 NI Act against Kamal at KKD Courts. If accused Kamal had certain dispute with Bobby Verma, how could he allow Kamal to make transactions at his jewelery shop without ID proof? The role of Bobby Verma itself appeared to be suspicious in the entire case. It is worth mentioning that Bobby Verma was arrested during the investigation and he got released u/s 169 Cr.P.C by IO SI Jainender.
State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas
U/s 420/468/471/120 IPC Page no.25 of 28
38. According to PW15 Insp. Chander Shekhar, accused Kamal was arrested from his house. He had gone to Farsh Bazar alongwith complainant Bobby Verma who took him to house of Kamal and during the interrogation Kamal disclosed that he alongwith Vipin and Zahid etc. had started to use cloned cards. On 15.06.2010 accused Kamal brought the police house and got recovered 7 cards which were seized vide seizure memo Ex.PW15/E and also got recovered one original receipt of jewelry purchase of Kashoti Jewelers which was seized vide seizure memo Ex.PW15/F. He had also deposed that on 13.06.2010 accused Vijay Soni was arrested vide arrest memo Ex.PW15/B and his disclosure statement was also recorded vide Ex.PW15/C. Perusal of the seizure memo Ex.PW15/E vide which 7 cards were seized, shows that the card pertains to ICICI, HDFC, UBI etc. None of the cards pertains to the Standard Chartered Bank or Royal Bank of Scotland. There is nothing on record which could show that the said cards are cloned cards. IO had not made any attempt to verify that the seized cards were cloned cards. He had also not made any effort to procure cards from accused of Standard Chartered Bank or Royal Bank of Scotland from which alleged transactions were made. In the present case, IO could have verified the cloned cards with the swapping machine. Even if assuming that the seized cards were used in making transactions, however there is nothing on record to show that the seized cards ( vide seizure memo Ex.PW15/E ) were used for making the alleged illegal transactions. Apart from disclosure State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.26 of 28 memos, there is nothing on record which could prove the role of the accused persons in cloning the cards and using the said cloned/forged cards in making the alleged transactions. The role of accused Vijay Soni and Ankush is also not clear from record as apart from disclosure statement, nothing substantial has been brought against them.
39. Considering the above discussion, it appears that there are several lapses on the part of the investigating officer in investigating the case. The chain of link connecting the accused persons to offence is missing. The benefit of doubt is therefore granted to the accused persons.
40. It is well settled that in a criminal trial the burden of proof is on the prosecution to prove its case beyond reasonable doubt. Any contradiction or iota of proof in favour of accused can completely dismantle the case of prosecution. In the present case there are no cogent material available on record to suggest that accused persons had entered into criminal conspiracy and induced the bank official of Standard Chartered Bank and Royal Bank of Scotland to believe that authorized card holder were using the original ATM card for withdrawing the amount from the account of their customers and by using cloned card, the said amount were released by the accused persons. There is also nothing on record to show that accused persons had forged cloned ATM cards for the State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.27 of 28 purpose of cheating and they used forged ATM cards as genuine for making the alleged transactions. There is not even a single iota of evidence to connect accused persons with crime.
Conclusion & Decision
41. In the absence of any cogent evidence and in view of the aforementioned discussion, it is concluded that the prosecution has not been able to prove its allegations beyond reasonable doubt and thus, the accused persons are entitled to benefit of doubt. In these facts and circumstances, the prosecution has failed to discharge the onus laid upon it to prove the guilt of the accused persons. Thus, accused Kamal, Vijay Soni and Ankush are acquitted for the commission of the offence U/s 420/120B, 468/120B and 471/120B IPC.
Announced in the open court (VIJAYSHREE RATHORE) In Delhi on 25.09.2024 JMFC-06,SOUTH/SAKET DELHI State Vs. Kamal Kumar FIR No. : 177/2010 PS Hauz Khas U/s 420/468/471/120 IPC Page no.28 of 28